Marco Oliver v The Commissioner of the Bahamas Department of Corrections
| Jurisdiction | Bahamas |
| Judge | Fraser, J |
| Judgment Date | 07 December 2021 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2020 PUB/con/ |
IN THE SUPREME COURT
The Honourable Madam Justice Deborah Fraser
2020 PUB/con/
IN THE MATTER an APPLICATION pursuant to Article 17 of the Constitution of The Commonwealth of The Bahamas
In The Matter Of An Application By MARCO OLIVER
Marco Oliver (Pro-Se)
Mr. Timothy Bailey for the Respondents
The Correctional Services (Inmates) Rales 2014 — Commissioner of Corrections — Rules 8–14 of the Correctional Services (Inmates) Rules 2014 — Constitutional Motion — Constitution — Constitutional Rights — Request for Witnesses — Article 28 (2) Of The Constitution — Article 17 of the Constitution
(1) The Applicant Marco Oliver is seeking constitutional relief in relation to his prison conditions and claims that the Respondents have violated his constitutional rights guaranteed by Article 17 of the Constitution. The Applicant is currently serving a sentence for Armed Robbery and is due to be released in 2024. His claim relates specifically to alleged violations of the Correctional Services (Inmates) Rules 2014, rules 8–14 providing accommodation and care of Inmates. The Applicant has also requested a number of witnesses in this matter.
(2) Counsel for the Respondent has contended that these are all issues which can be addressed by the Department of Corrections and the Commissioner of Corrections is able to speak to all of the issues raised. They have produced a Report from the Internal Affairs Unit of The Bahamas Department of Corrections which was exhibited in the Affidavit of Attorney Perry McHardy, filed and sworn on the 31 st May, 2021.
(3) Unfortunately due to the Pandemic this matter has been protracted. The Applicant in this matter was unrepresented and so as to ensure fairness, the Court held several case managements in this matter to allow the Applicant to put his concerns to the Court including why he thought it would be necessary to hear from the several witnesses. The Courtalso heard the parties on a preliminary objection by the Respondent in which it was submitted that the Applicant has no right of appeal to the Supreme Court until he has exhausted all available means of redress available to him. Counsel relied on Article 28 of the Constitution in that regard. The Applicant submitted that he has made all efforts to have his issues addressed by the Department of Corrections but to no avail. The Respondent submitted that there was no proof of such efforts. My decision was reserved. I now rule.
(4) After hearing both parties in this matter and after reading the submissions of counsel for the Respondents the only issue for the Court is whether the Court should exercise its constitutional power in this matter having regard to Article 28(2) of the Constitution. The decision regarding witnesses has also been taken into account.
(5) The Applicant submitted a letter to the Supreme Court dated the 7 th September 2017, alleging that he was being treated in an inhuman manner. He stated that he was deprived of seeing the doctor, medication, exercises, toiletries, proper meals, showers, bedding and was being subjected to some of the most squalid conditions in the prison. He was forced to defecate, urinate, brush his teeth and wash his face in a bucket as well as sleep on the floor in a foul smelling small cell without ventilation. A subsequent letter was served on the 27 th January 2020 addressed to the Supreme Court in which the Applicant alleged that his constitutional right pursuant to Article 17 had been breached due to the non — compliance of rules 8–13 of the Correctional Services Inmate Rules 2014. The Applicant stated that he is being mistreated, oppressed and dehumanized at the Department of Corrections. The Applicant is also relying on copies of his diaries in which he has documented the alleged complaints.
(6) The Respondent is relying on an affidavit of Perry McCardy, former counsel in the office of the Director of Public Prosecutions containing a summary of a report by the Internal Affairs Unit of The Bahamas Department of Corrections who conducted an investigation into the allegations. The relevant portions are as follows-
“6. That Chief Corrections Officer Curtis reported that the Applicant is housed in cell E (Eastern Group) along with two other inmates and is adequately accommodated with a mattress.
“7. That the Department of Corrections kitchen provide three (3) meals per day and facilitate inmates that have a special diet, however investigations revealed that the Applicant was not placed in that category. Further, the Applicant is provided with Reverse Osmosis water daily for drinking purposes or he has the option to purchase drinking water from the Inmate's Commissary.
8. That the Applicant does not have access to medical care. The Applicant was examined by Dr. Hasting Johnson upon his initial admission to the Department on the 17th November, 2016. Recent visits to the Medical Department revealed that the Applicant complained about difficulty sleeping, pain in his left shoidder blade and testicular pain. He is currently receiving medical treatment for the same.
9. That “EXHIBIT Vfurther discloses that the Applicant is allowed to shower and exercise twice per week i.e. Mondays and Wednesdays with Thursdays being a lockdown day for the guard to change. Due to the overpopulation and large amount of members of security threat groups it is difficult to permit each inmate to exercise every day. Most members refuse to leave their cells because of their allegiance to various gangs.
10. That the Applicant is given fresh water to use for personal hygiene purposes. Inmates in the Maximum Security Unit receive the required toiletries namely soap, toothpaste, toilet tissue, tide on a weekly and bi-weekly basis. Toothbrushes are supplied upon request.
11. That a further inquirywas made of Chief Corrections Officer Curtis regarding the use of the bucket. He advised that separate buckets are provided to inmates daily, one is for the inmates to relieve themselves and the other would contain fresh water for the purpose stated in paragraph 10.
12. That there is no record of the Applicant making any complaint nor any documentation to the Commissioner of Corrections that he has been treated unfairly, however he had appeared before the Disciplinary Tribunal several times for breach of the Inmates' Rules. The Report concluded that the Applicant has not been mistreated by inmates or officers while housed at The Bahamas Department of Corrections.”
(7) The Applicant has submitted that he did make efforts to bring these matters to the attention of the Commissioner of The Bahamas Department of Correctional Services but has not received any response and he wishes to call a number of witnesses to support his allegations.
(8) Counsel for the Respondent has submitted that witnesses in this matter are unnecessary and that the Commissioner of Correction can speak to all issues in the Department. Counsel also submitted that there was no violation of the fundamental rights and freedom of the Applicant in particular Article 17(1), while he was on remand or selves his sentence. Further, that there is an administrative process within the prison system to address any grievances the Applicant may have and is an alternative remedy available to him. Additionally, Counsel for the Respondents submitted that the Internal Affairs Unit inspected files and documents and found no record of the Applicant making a formal or informal complaint to the Commissioner of Corrections concerning inhuman treatment or fear of life.
(9) Finally Counsel for the Respondents submitted that the Applicant has no right of appeal to this Court until he has exhausted all available means of redress available to him in accordance with Article 28 of the Constitution and that the Applicant has not made a request to the Commissioner of The Bahamas Department of Correctional Services in accordance with the Correctional Services (Inmates) Rules, 2014.
(10) The following laws were considered and relied upon in this case. Firstly, Articles 17 and 28 of the Constitution of The Bahamas which reads as follows-
“ 17. (1) No person shall be subject to torture or to inhumane or degrading treatment or punishment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to be extent that the law in question authorize; the infliction of any description ofpunishment that was lawful in The Bahamas Islands immediately before the 10th July, 1973.”
“28. (1) If any person alleges that any of the provision of Articles 16 to 27 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction -
1. (a) to hear and determine any application made by any person in pursuance of paragraph (1) of this Article; and
2. (b) to determine any question arising in the case of any person which is referred to in pursuance of paragraph (3) of this Article, and may make such orders, issue such Writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the...
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